2018 (11) TMI 1395 - HC - Service Tax

Refund of service tax paid on brokerage charges collected from the Foreign Institutional Investors - Unjust enrichment - assessee had paid service tax on the amount actually received on cum tax value - export of services - Held that - The impugned order of the Tribunal, after holding on merits that, services rendered by the Respondent to the Foreign Institutional Investors were in the nature of export of services - further, in view of the proviso (a) to Section 11B (2) of the Act, no question of unjust enrichment can arise in case of export of services - the view taken by the Tribunal cannot be found fault with - the proposed question does not give rise to any substantial question of law - appeal dismissed.

Summary

Issues:
- Challenge to order dated 16th November, 2016 passed by the Customs, Excise and Service Tax Appellate Tribunal
- Question of law regarding unjust enrichment in service tax refund claim
- Interpretation of Section 11B of the Central Excise Act, 1944
- Consideration of export of services in relation to unjust enrichment

Analysis:

The High Court of Bombay heard an Appeal under Section 35G of the Central Excise Appeal Act, 1944 challenging the order of the Customs, Excise and Service Tax Appellate Tribunal dated 16th November, 2016. The main question of law raised by the Revenue was whether the Tribunal erred in not appreciating the fact that the assessee had paid service tax on the amount actually received on cum tax value, thus making the clause of unjust enrichment applicable. The Respondent had filed a refund claim in December 2004 for service tax paid on brokerage charges collected from Foreign Institutional Investors between December 2003 and October 2004.

The Deputy Commissioner issued a show cause notice in March 2005 to reject the refund application on the grounds of unjust enrichment, citing sub-section (2) of Section 11B of the Central Excise Act, 1944, as applicable to Service tax by Section 83 of the Finance Act, 1994. The Tribunal, in its impugned order, found that the services rendered by the Respondent to the Foreign Institutional Investors were in the nature of export of services. It further held that, due to the proviso (a) to Section 11B (2) of the Act, no question of unjust enrichment could arise in the case of export of services.

The High Court upheld the Tribunal's decision, stating that the view taken by the Tribunal was legally sound and in accordance with the law. Therefore, the proposed question did not raise any substantial question of law and was not entertained. Consequently, the Appeal was dismissed with no order as to costs.